MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 June 2002
         DOCKET NUMBER: AR2002067174

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Thomas E. O’Shaughnessy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: In effect, affirmation and restoration of the general, under honorable conditions discharge (GD) granted him by the Army Discharge Review Board (ADRB) based on the criteria of the Special Discharge Review Program (SDRP).

APPLICANT STATES: In effect, that his undesirable discharge (UD) was upgraded to a GD in 1977, but this upgrade of his discharge was stripped from him later without his knowledge. In support of his application, he provides a statement from his wife explaining why his discharge should be upgraded and why he should be entitled to receive medical benefits from the Department of Veterans Affairs (VA). The applicant’s wife states, in effect, that although her husband’s separation physical examination and the mental status evaluation conducted at the time of his discharge failed to indicate that he had an organic brain disease, heart condition, or personality disorder, the advances in the medical and mental diagnosis process and care have proven that her husband suffers from a Post Traumatic Stress Disorder (PTSD), based on his combat experiences in the Republic of Vietnam (RVN).

The applicant’s wife further claims that although his mental condition was not diagnosed at the time of his discharge, it is clear that it existed even then. She indicates that many names have been given to mental conditions suffered by soldiers during times of war, in her husband’s case, he suffers from what is commonly referred to as Vietnam Syndrome. His symptoms clearly describe a Post Traumatic Stress Disorder (PTSD), which he suffers from based on his witnessing the death of other soldiers and receiving a head wound in combat action while serving in the RVN. These experiences resulted in his suffering from intense fear, hopelessness, and helplessness. These are PTSD symptoms that manifest in flashbacks, as a result of his remembering his experiences in the RVN, and in his lack of hope for the future, anger, and rage.

The applicant’s wife further contends that the lack of a mental evaluation that diagnosed this PTSD condition at the time of her husband’s discharge, does not prove that the condition did not exist at the time. The many advances in the medical diagnosis process and care in these cases, coupled with the combat experiences of her husband and the symptoms from which he suffers, make it evident that he suffers from a PTSD. Further, it is likely this condition existed at the time of his discharge, which was subsequent to the events he experienced in the RVN that caused this condition. She concludes that her husband was receiving treatment for his condition at the VA, but because of the reversal of his discharge upgrade, these treatments were stopped and he received a bill for $15,000.

---

The applicant’s wife also comments that the mix up in the discharge upgrade process should not penalize her husband and should not result in his losing his entitlement to VA medical care. She hopes that the Board will see that while her husband can never be made whole, his record of combat service, including his earning the Purple Heart (PH) and Combat Infantryman Badge (CIB), and the existence of his PTSD condition, which she believes began prior to his discharge, as early as 1970, should warrant this discharge upgrade situation being corrected. Finally, she claims that her husband should be allowed to continue to receive VA medical care based on the medical conditions he suffers from based on his combat service.

EVIDENCE OF RECORD: The applicant's military records show:

On 23 July 1968, he entered active duty in the Regular Army for 2 years. He successfully completed basic training and advanced individual training (AIT) at Fort Polk, Louisiana, and was awarded military occupational specialty (MOS) 11B (Infantryman).

The applicant’s Enlisted Qualification Record (DA Form 20) confirms that the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3). It also verifies that he served in the RVN from 8 January 1969 through 22 January 1970, and that while serving there he participated in two campaigns. Item 40 (Wounds) contains an entry that verifies that he received a fragmentation wound to the forehead on 8 March 1969, while serving as a PFC/E-3 in the RVN. Item 41 (Awards and Decorations) shows that during his active duty tenure, he earned the National Defense Service Medal, PH, CIB, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with
60 Device.

On 8 January 1969, the applicant arrived in the RVN, and he was further assigned to Company E, 2^nd Battalion, 27^th Infantry Regiment, 25^th Infantry Division, to perform duties in MOS 11B as a scout observer. His disciplinary record while assigned to this unit includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated: 12 April 1969, for disobeying a lawful order from a noncommissioned officer to move into a position that would give good rear security; 12 June 1969, for appearing at the club without headgear and in need of a haircut; and 29 May 1969, for appearing a the snack bar in tailored jungle fatigues and being belligerent toward the enforcing military policeman (MP). In addition, on 6 July 1969, he was convicted by a special court-martial of behaving with disrespect toward a superior commissioned officer.

---

On 14 September 1969, the applicant was reassigned to Company C,
2^nd Battalion, 27^th Infantry Regiment, 25^th Infantry Division, RVN. He served with this unit 7 November 1969, at which time he was confined as a prisoner in the correctional holding detachment in the RVN. On 27 November 1969, he was found guilty by a special court-martial of being absent without leave (AWOL) from 22 October through 6 November 1969; and of disobeying the lawful command of a first lieutenant to get his gear and go to the field. At the completion of his combat tour in the RVN, the applicant received unsatisfactory conduct and efficiency ratings.

On 11 January 1970, the applicant was reassigned to Fort Leavenworth, Kansas, to serve his confinement. On 25 February 1970, he was reassigned to the Correctional Training Facility (CTF), Fort Riley, Kansas, as a confinement trainee. He completed his rehabilitation training and received excellent conduct and efficiency ratings from the CTF. On 23 April 1970, he was returned to duty at Fort Sill, Oklahoma, where he arrived on 23 April 1970.

On 2 May 1970, the applicant departed AWOL from his unit at Fort Sill, and he remained away for 17 days until returning to military control on 18 May 1970. On 27 May 1970, he was convicted of this offense by a special court-martial. The resultant sentence included confinement at hard labor for 2 months and a forfeiture of $50.00 per month for 2 months.

The specific facts and circumstances pertaining to the applicant’s discharge processing are not on file in the record. However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for his discharge. This document was authenticated by the applicant with his signature on the date of his separation. It confirms that he was separated with an UD under the provisions of Army Regulation 635-212, by reason of unfitness, based on an established pattern of shirking. It also shows, at the time of his discharge, he had completed a total of 1 year, 3 months, and 3 days of creditable active military service, and he had accrued a total of 246 days of time lost due to AWOL and confinement.

There are no medical records available that show the applicant suffered from a medically disabling condition that impaired his ability to serve or that may have been a mitigating factor for his misconduct.

On 23 June 1977, the applicant’s discharge was upgraded by the ARDB under the criteria of the SDRP. This upgrade action was based on the fact that the applicant had been wounded in action, his length of service, age, educational level, and general aptitude.

---

On 8 September 1978, the applicant’s case was reconsidered by the ADRB using the uniform standards established in Department of Defense Directive 1332-28. The ADRB concluded that the applicant’s GD issued under the provisions of the SDRP did not warrant affirmation. This determination was made based on his overall record of service. The ADRB proceedings informed the applicant that while this decision did not change the discharge he now had, it may impact his ability to acquire VA benefits. The record does show that while these proceedings were mailed to the applicant, they were returned to the writer based on the applicant having moved and leaving no forwarding address.

The Department of Defense (DOD) SDRP was directed in a memorandum from the Secretary of Defense in 1977. The SDRP stipulated that all former service members who received UD’s or GD’s during the period 4 August 1964 through 28 March 1973, were eligible for review under the SDRP. It further indicated that individual’s who received a UD during the RVN era would have their discharges upgraded if they met one of the following criteria: wounded in combat in the RVN; received a military decoration, other than a service medal; successfully completed an assignment in Southeast (SE) Asia or in the Western Pacific in support of operations in SE Asia; completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974; or received an honorable discharge (HD) from a previous tour of military service.

On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions (UOTHC) discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive Number 1332-28.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that his discharge was upgraded and that being stripped of that upgrade was unjust, and it carefully considered the issues raised by the applicant’s wife in her letter to the Board. However, it still finds an insufficient evidentiary basis to support the requested relief.

---

2. The evidence of record confirms that the applicant was separated with an UD, by reason of unfitness, based on his established pattern of shirking. This UD was upgraded by the ADRB based on a mandate contained in the established SDRP criteria in effect at the time, based on his having been wounded in action in the RVN. However, the record also verifies that this GD upgrade action was reconsidered by the ADRB using uniform discharge review standards, as required by Public Law 95-126. This reconsideration action resulted in a determination that the GD issued by the ADRB under the SDRP criteria did not warrant affirmation based on the applicant’s overall record of service and his extensive disciplinary history.

3. The evidence of record also confirms that the discharge review process followed in this case was accomplished in accordance with existing law and regulations in effect at the time, and it finds no error or injustice related to these actions. In addition, notwithstanding the claims of the applicant and his wife, the Board finds no medical evidence of record or independent medical evidence that supports the allegation that the applicant suffered from a mental condition that impaired his ability to serve at the time of his discharge, or that mitigated his extensive record of misconduct sufficiently to warrant an upgrade of his discharge.

4. In addition, lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the UD he received accurately reflected his overall character of service at the time it was issued. The Board also concurs with the 1978 determination of the ADRB that, notwithstanding his record of combat service, the GD issued to the applicant under the provisions of the SDRP does not warrant affirmation given his extensive disciplinary history and record of misconduct.

5. In the opinion of the Board, while the applicant is to be congratulated for being awarded the PH and CIB, the quality of his combat service is severely diminished by his extensive record of misconduct while serving in the RVN. Therefore, the Board concludes that the requested relief is not warranted in this case.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

---

7. Finally the applicant is advised that while it appears that the decision not to affirm his GD was never delivered to him, this does not change the fact that the decision to grant entitlement to medical benefits administered by the VA is made by that agency. This includes any redress of debt incurred as a result of receiving unauthorized medical care and/or any determination of service connection to a current medically diagnosed condition, which includes PTSD.

8. Therefore, the applicant is advised that if he believes that he was unjustly charged for medical benefits received by the VA, he should address his rebuttal of that debt to that agency. Further, if he thinks that he currently suffers from a medical condition that is service connected and should be entitled to VA medical care on that basis, he should contact VA officials to pursue this entitlement claim.

9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_SK___ ___JTM__ __TEO____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2002067174
SUFFIX
RECON
DATE BOARDED	2002/06/06
TYPE OF DISCHARGE	UD/GD
DATE OF DISCHARGE	1970/07/01
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 191	110.0200
2.
3.
4.
5.
6.